

\1 



LIBRARY OF CONGRESS 





014 496 319 2 



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F 277 

.B7 S7 

Copy 1 COMMUNICATION 



HIS EXCELLENCY GOVERNOR COBB, 



BOUNDARY 



SOUTH-CAROLINA AND GEORGIA; 

ATTORNEY-GENERAL OF SOUTH-CAROLINA. 



CHARLESTON: 

STEAM POWER PRESS OF WALKER ft JAMES. 

No. 3 BaOAD-BTBBBT. 

1853. 



2{i>iH({ 




RESOLUTIONS 
GENERAL ASSEMBLY OF SOUTH-CAROLINA. 



Iif THE Senate, December 15, 1852. 

The Committee on Federal Relations, to whom was re- 
ferred Message No. 3 of His Excellency the Governor, with 
the letter of Governor Cobb, of Georgia, in reference to 
the boundary line between this State and Georgia, Report : 
That they have considered the same, and recommend to the 
Senate the adoption of the accompanying resolutions : 

Resolved, That the boundary between South-Carolina 
and Georgia, as defined in the Convention, concluded at 
Beaufort by the duly authorized Commissioners of the two 
States, on the twenty-eighth day of April, 1787, and subse- 
quently ratified by the respective Legislatures of these 
States, is the existing boundary between said States. 

Resolved, That the terms of the first article of the said 
Convention, construed by the undisputed principles of inter- 
national and common law, fix, as the limit of the respective 
jurisdictions of the two States, the thread or middle of the 
stream designated as their boundary : that is to say, the 
thread or middle of the most northern branch or stream 
of the rivers Savannah and Tugaloo, where these rivers 
have more than one branch or stream, and the thread or 
MIDDLE q/" the§e RIVERS wherc there is but one branch or 
stream. 

Resolved, That such has been the uniform construction 
given to the said Convention by the Courts of South-Caro- 
lina, and acted upon by her General Assembly ; and that so 
far as is known to this Legislature, no department of the 
government of this State has ever at any time acquiesced in 
^ny construction of the said Convention, abridging her ter- 
ritorial limits as now defined. 

Resolved, That the Governor be requested, in conjunc- 



tion with the Attorney General, to take such measures 
as he may deem necessary and proper to establish and main- 
tain the rightful authority and jurisdiction of the State of 
South-Carolina over the territory lying on this side of the 
boundary line as above defined. 

Resolved, That the Senate do agree to the Report. 

Ordered, That it be sent to the House of Representatives 
for concurrence. 

By order, W. E. MARTIN, C. S. 

In the House of Repkesentatives, December Ifi, 1852. 

Resolved, That the House do concur in the Report. 
Ordered, That it be returned to the Senate. 

By order, H. J. DEAN, C. H. R. 

The two first Articles of the Convention at Beaufort in 1787. 

ARTICLE THE FIRST. 

" The most northern branch or stream of the river Savannah, from 
the sea or mouth of such stream to the fork or confluence of the rivers 
now called Tugaloo and Keowee, and from thence to the most northern 
branch or stream of the said river Tugaloo till it intersects^ the northern 
boundary line of South-Carolina, if the said branch or stream of Tuga- 
loo extends so far north, reserving all the islands in the said rivers Sa- 
vannah and Tugaloo to Georgia ; but if the head spring or source of 
any branch or stream of the said river Tugaloo does not extend to the 
north boundary line of South-Carolina, then a west line to the Missis- 
sippi, to be drawn from the head spring or source of the said branch or 
stream of Tugaloo river, which extends to the highest northern lati- 
tude, shall forever hereafter form the separation, limit and boundary 
between the States of South-CaroHna and Georgia. 

ARTICLE THE SECOND. 

"The navigation of the river Savannah, at and from the bar and 
mouth, along the north-east side of Cockspur Island, and up the direct 
course of the main northern channel, along the northern side of Hutch- 
inson's Island, opposite the town of Savannah to the upper end of the 
said Island, and from thence up the bed or ^^rincipal stream of the said 
river to the confluence of the rivers Tugaloo and Keowee, and from the 
confluence up the channel of the most northern stream of Tugaloo river 
to its source, and back again by the same channel to the Atlantic 
ocean, is hereby declared to be henceforth equally free to the citizens 
of both States, and exempt from all duties, tolls, hindrance, interrup- 
tion or molestation whatsoever, attempted to be enforced by one State 
on the citizens of the other, and all the rest of the river Savannah to 
the southward of the foregoing description is acknowledged to be tho 
exclusive right of the State of Georgia." 



MR. HAYNE'S LETTER. 



Office of the Attorney-General of South- Cakolina 
Charleston, May 30th, 1853. 
To His Excellency Howell Cobb, Governor of Georgia : 

Sir : — I am instructed to inform your Excellency that a Message 
was sent by His Excellency Governor Means to tlie Legislature of 
South-Carolina in Decembei* last, covering your communication to him 
in regard to the boundary question, bearing date 18th Oct., 1852, but 
which had not been received until the day before the date of the Mes- 
sage. Your communication was read in each House and ordered to be 
printed in pamphlet form for the use of the members, and, with the 
Message, was referred to the Committee on Federal Relations. I have 
the honor now to transmit a copy of the joint resolutions adopted by 
the General Assembly of South-Carolina, in accordance with the report 
of the said Committee, accompanied with a letter from His Excellency 
Governor Manning, proposing that the subject matter should be sub- 
mitted to the Legislature of Georgia at its next session. 

South-Carolina, as your Excellency will perceive, considers that the 
question of boundary has been already referred to a joint commission of 
the States of Georgia and South-Carolina, and that a Convention set- 
tling this very point was then concluded between them. She cannot, 
therefore, propose a new commission, but submits to the candor of her 
sister State the construction which has always been placed by South- 
Carolina upon the existing Convention, and asks that Georgia on her 
part may express her deliberate judgment as to the true meaning of the 
compact. If the two States should imfortunately differ in their judg- 
ments, which I still hope may not be the case, I am instructed to pro- 
pose that the question of construction be, by consent of the two States, 
referred to the arbitrament of the Supreme Court of the United States, 
as a mode of friendly and final adjustment, freely and voluntarily se- 
lected by themselves. 

I would, however, before the State of Georgia takes her position in 
this matter, ask your indulgence in saying a few words by way of re- 



i 



6 

joinder to your Excellency's reply to the argument, which I had the 
honor to submit in September last, and beg that you would add to the 
courtesy already extended to me, by lajing this rejoinder with the rest 
of the correspondence before your General Assembly at its next session. 

Your Excellency, permit me to say, mistakes my argument when 
you suppose that it rests on the constjiuction of the Charter of lYSZ. 
In the Report to which you refer, I urged, first, that Georgia, having 
through the Convention, which framed the Constitution under which 
she now exists as a State, defined her own boundary, was estopped 
from claiming more territory than lay within the limits described in 
that instrument. I insisted that by her own declarations, as set forth 
in this her fundamental law, Georgia could claim no jurisdiction beyond 
the thread or middle " of the northern branch or stream of the Savan- 
nah," so far as that river forms a boundarj^, and no jurisdiction beyond 
the thread or middle "of the most northern branch or stream" of the 
Tugaloo, so far as that river forms a boundary, and that wherever either 
river consisted of but a single stream, the thread or middle of said 
stream formed "the separation, limit and boundary between the States 
of South-Carolina and Georgia." This was but the application, in con- 
struing the language of the Constitution of Georgia, of " the conceded 
principle of national law, [and of the common law,] that when two 
States are separated by a river, each is entitled to hold to the middle of 
the stream." Vattel Wheaton and Chief Justice Marshall, were cited 
as concurring in this established })rinciple of construction. 

Notwithstanding the argument advanced by your Excellency, I still 
would urge that Georgia, when she in her highest sovereignty selected 
terms by which she chose to declare to the world her own boundaries, 
at that time intended that the language used should be construed ac- 
cording to the well established and universally recognized principles of 
international and common law. Nor do I believe now that she will 
consider these rules of construction as superseded by uncertain conjec- 
tures as to the practical understanding of her citizens, whether before or 
after, or at the time of the adoption of the Constitution. In matters of 
private right, the introduction of parol testimony for the purpose of 
varying a written instrument is forbidden. Can a State with propriety 
disregard principles of law in the construction of terms used by herself 
as being "abstract" and "general," and substitute for them, as " proofs" 
more " practical and satisfactory," inferences from extraneous cii'cum- 
stances ? 

The Second argument relied upon in m.y report was deduced from the 
language of the Convention of Beaufort in 1'787, which argument, 



again, I Respectfully aubmit, was not baSed uport the Charter, bul alto- 
gethet' independent of it. 

The Commissioners at Beaufort defined the boundary precisely as it 
was, eleven years afterwards, defined by the Constitution of Georgia. 

Your Excellency, I am surprised to find, takes issue upon the fact 
that the Convention at Beaufort " settled the boundary between the two 
States." You will pardon me for asking whether higher authority can 
be had than the Convention itself,finiQTed into " for and in behalf of the 
State of Georgia," by her duly authorized Commissioners John Haber- 
sham and Lachlin McIntosh, by which to ascertain what u'as, and 
what was not " settled" by that Convention ? 

If we refer to that instrument, the first article, we find, declares, in 
language precise, definite and emphatic, that the streams or branches of 
the Savannah and Tugaloo rivers, as therein set forth, "shall forever 
hereafter form the se2mration, limit and boundary between the States of 
South- Carolina and Georffia.''^ Could language be more exphcit ? In 
what is it dubious ? If the Convention be binding at all, to me 
it appears that the thing, which most of all others it does " set- 
tle," is the "boundary" from the ^'- sea''"' to the '^northern boufi- 
dary line of South-Carolina." Your Excellency refers to the " Pte- 
amble" A Preamble, of course your Excellency is aware, " cannot 
control the enacting part of a Statute, which is expressed in clear and 
unambiguous terms." Its effect cannot be different in an instrument of 
this kind. The Preamble, it is true, may be resorted to, to explain 
what is ambiguous. But surely we have no ambiguity here, so far, at 
least, as regards the fact, that a boundary is defined. If, however, we 
resort to the " Preamble" I submit that it does not sustain your Excel- 
lency's view. The " Preainble" recites the Petition of South-Carolina, 
praying for a determination of the differences and disputes as to boun- 
dary, and shewing what were the subjects of dispute ; (among which I 
concede does not appear the dispute as to the thread of the stream ;) it 
presents then the proceedings thereon in Congress, and sets forth the 
wish of the two States to adjust amicably their disputes ; it informs lis of 
the appointment of the Commissioners, and, lastly, expresses the powers 
and purposes of the Commissioners. 

The Legislatures of the States respectively (the " Preamble" pro- 
ceeds) " did invest them with full and absolute power and authority in 
behalf of the State, to settle and compromise all and singular the dif- 
ferences, controversies, disputes and claims which subsist between the 
said State (Georgia) and the State of South-Carolina, relative to boun- 
dary, kUTD to establish and permanently fix a boundary between the 



8 

two States." The Convention then was intended not only to adjust the 
"mooted questions," but, in addition thereto, " to fix permanently 
A BOUNDARY BETWEEN THE TWO SxATES." Is it possible to make lan- 
guage plainer ? 

These Commissioners assembled for this purpose, as thus declared 
in this Preamble, not only to adjust disputes, but also expressly " to 
fix a permanent boundary," concluded the Convention on the 28th 
day of April, IVSV, and in February, 1788, it was ^^ enacted, hy the 
representatives of the freemen of the State of Georgia in General As- 
sembly met, and by authority of the same, That whatever was 
DONE by the said Commissioners, or a majority of them, as aforesaid, is 
hereby ratified, and shall be considered as binding upon the citizens 
of this State, any law to the contrary notwithstanding.'''' What, I 
would ask, becomes of the " law" of 1783 if it differs from this ? And 
suppose the Charter to read as your Excellency contends it does, and 
that such reading can have no other meaning than that which your Ex- 
cellency attaches to it, the terms used in the treaty are here ratified, 
and the NEW boundary, if it be such, " which shall forever HEREAF- 
TER form the separation," is adopted, " any law to the contrary 
notwithstanding." 

In the case of Foole vs. Fleeger, 11 Peters' Reports, Judge Story, in 
delivering the opinion of the Supreme Court says — " It cannot be doubt- 
ed that it is a part of the general right of sovereignty belonging to in- 
dependent nations, to establish and fix the disputed boundaries between 
their respective territories ; and the boundaries so established and fixed 
BY COMPACT between nations become conclusive, upon all the subjects 
and citizens thereof, and bind their rights, and are to be treated to all 
itnents and purposes as the true and real boundary. This is a doc- 
trine universally recognized in the law and practice of nations. It is a 
right equally belonging to the States of this Union." 

The second article in regard to the navigation of the Savannah, was 
surely not more within the purview of the commission than the boun- 
dary question. The Preamble on that point is altogether silent. The 
whole instrument, however, was rendered binding by the subsequent 
ratification. 

The argument, then, which I had the honor to present, was, I think, 
complete, without reference to anything prior to the Convention at 
Beaufort. Every thing previous to that, if conflicting with it, was con- 
sidered by me as superseded. A Statute, it is said by lawyers, controls 
the Common Law, and a more recent Statute abrogates any number of 
anterior conflicting Statutes. If the Charter and Convention conflict, the 



9 

latter controls, and by a parity of reasoning if the question be, can the 
language of the two be reconciled, we must begin with the last. Con- 
strue first the Con\ention according to its obvious meaning, and if you 
can make the language of the Charter mean the same thing, they stand 
together, if not, the provisions of the first in date have been modified by 
those of the more recent enactment. 

It was more in the way of historical illustration, than as even cumu- 
lative argument, that I cited in the Report the language of the com- 
mission to Governor Wright in 1*704 — of that to Governor Reynolds in 
1754 — of the surrender by the Trustees'iof Georgia in 1*752 — of the ex- 
tract from a statement of the boundary dated 1Y40 — of the Charter it- 
self as laid down in Watkins' Digest in 1*732 — of the Report to the 
Privy Council in 1731 — and of the original petition of Oglethorpe in 
1730. The language in all of these documents certainly approximates 
much more nearly to the description of boundary contained in the Con- 
vention at Beaufort, than to the peculiar expressions of what your 
Excellency supposes to be the true version of the Charter of 1732. And 
in none of them would the language used, when taken alone, bear the 
construction which your Excellency puts upon the terms used in your 
supposed correct reading of the Charter. 

But if the true reading of the Charter were important, I submit, 
that the best evidence the nature of the case admits of has not been ad- 
duced. I still prefer the copy from the Office of Trade, Whitehall, 
London, certified by George Chalmers in 1795, given by Watkins, 
though but an " extract," conforming as it does in its language to the 
Royal Commissions and other documents, to that of the copy contained 
in Schley's Digest, ditifering as that does from all these documents, 
though given "in extenso," and copied again by Hotchkiss, McCall and 
Stevens. Ought not the original to be among the archives of Georgia ? 
or some authenticated record at least ? And even if the record in Geor- 
gia be lost, we have no reason to suppose that England has been equally 
unfortunate. 

But conceding the version of the Charter claimed by your Excellency, 
and admitting that the subsequent documents referred to, do not profess 
to give the precise language, but an '■'•analysis or recital" I submit 
that the eflfect of these is to give a contemporaneous and continuous 
construction of the Charter, in accordance with the claim of South- 
Carolina. If all these documents running through so long a period of 
time, in attempting to convey the meaning of the Charter, use language 
which fairly construed gives the boundary we claim, then the Charter 
must be supposed to mean the same thing. Nor is this a forced con- 



10 

struction. " From the most uorthern part of a streaui." Is this the 
ordinary mode of designating the northern bank or shore of a stream ? 
The language is '' which lies from the most northern part of a stream," 
" all along the sea-coast to the southward, to the southern stream of a 
certain other great river." Now this language has reference evidently 
to the river at and near its mouth. The writer had in mind most pro- 
minently the river from the city of Sarannah to the sea, where the 
" stream^'' is divided or parted by many Islands, and the several branches 
are so many divisions or '■'■ patts''' " of the stream." The " most northern 
part, then, is in my opinion well construed in the subsequent " analyses" 
or " recitals" as " the most northern stream." " The most northern 
joart of a stream," is this a usual mode of expression ? Is there any 
precision in its meaning ? Any received or technical construction be- 
longing to it? I apprehend not. One of the meanings given by 
Walker to the word ^^part" is " that which in division falls to each.*' 
That portion then of the river which, in the division made by the inter- 
position of an island at the mouth of the stream, falls to the north of 
the island, is the " northern part" of said stream. Again observe the 
context. All along tho sea coast to the southward to the southern 
stream of a certain other great xvater or river called the Altamaha." 
Was not the same provision intended to apply to the Altamaha as to 
the Savannah. The northern stream of the one, and the southern 
stream of the other are taken as the boundaries. The subsequent docu- 
ments, as your Excellency will perceive, apply to each river the same 
language, shewing clearly that the expressions were understood alike. 
Now " the most northern stream," or " the southern stream," is a 
phrase, which when it designates a boundary, has a precise, received 
and technical meaning. It gives ex vi termini the thread of the stream 
as the line of separation. Apart from the subsequent " recitals," this 
I should hold to bo a less forced construction than to interpret " north- 
ern part of a stream''' to mean its north bank, but the numerous " reci- 
tals" and " analyses" make plain that which before might possibly have 
admitted of a doubt. 

Your Excellency is, I think, mistaken in supposing that tho expres- 
sion, " the most northern stream," was ever applied exclusively above 
the confluence of the Tugaloo and Keowee. Such an idea is contra- 
dicted, as well by the character of the river, as the uncontroverted lan- 
guage everywhere used in defining the boundary of Georgia. The 
river^ as I have said, in point of fact, is divided at and below Savan- 
nah, into several streams, and in the 2d Article of the Convention of 
Beaufort, " mouths" are spoken of in the plural, the " warn northern 



11 

ckanner is specified, implying of course other channels, as likewise the 
^^pn7icipal stream'''' implying necessarily other streams. And again the 
Charter begins to define the boundary by taking as a corner the point 
at which " the most northern stream" enters the ocean, and runs thence 
not up the river, but soutMoardly. The reference here obviously can- 
not be to the streams above the confluence. 

Your Excellency deduces an argument against the construction of the 
Convention of Beaufort, which would give to South-Carolina jurisdic- 
tion to the middle of the most northern stream, from the fact of the 
insertion of the 2d Article, regulating the navigation of the Savannah. 
You suggest the inquiry " where was the necessity of the 2d Article ?" 
I must reply by a quotation from my report. " It is obvious that the 
thread of the most northern branch being fixed as the boundary, South. 
Carolina would, without other provision, be excluded from all partici- 
pation in the southern branches, which in some j^ortions of the river 
constitute the best and perhaps the only navigable channel. To pro- 
vide against such result, the 2d Article of the Convention declares," 
etc. After leaving Hutchinson's Island, South-Carolina has secured to 
her equality in the " principal stream," whether that be the northern 
or southern. Besides, as is likewise contended in the report, this article 
gives to South-Carolina free navigation, uot onhj on her own side of the 
filum aqude in the dviding stream, but an equality in this respect with 
Georgia in every part of the river, from bank to bank. This surely suf- 
ficiently accounts for the insertion of such a provision. But why, allow 
me to ask, in return, in the 1st Article of the treaty, especially reserve 
the Islands in the Savannah to Georgia, if the Commissioners assumed 
that a " uniform and unvarying construction" had, in all the past, from 
1732 until that time, given her " //ic whole of the Savannah river?" 
Would not this reservation in that case " become nugatory?" 

Your Excellency presents five grounds upon which rest, you say, the 
claim of Georgia. 

The frst is " the Charter," which I have already fully examined. 

Secondly, "undisputed and undisturbed enjoyment." 

I do not understand what are the facts set forth in your letter, Avhich 
in your Excellency's opinion establish this ground. I am not aware 
that Georgia, as a State, has ever asserted such a claim, and am not 
informed of the nature of the " enjoyment" referred to, in which South- 
Carolina has not equally participated. 

Thirdly. " The uniform and unvarying construction" placed upon 
the terms defining her boundary. 

If your Excellency refers to the construction given by Georgians, it 



12 

is hardly to be expected that because a construction has been " uniform 
and unvarying" with one of the contracting parties, it must necessarily 
be conceded by the other contracting party. 

But where, with all deference I ask, again, is the evidence of this 
" uniform and unvarying construction ?" Not in the documentary tes- 
timony. That as I have shown is with South-Carolina. Your Excel- 
lency has adduced the "protest" of Mr. John Houston against the 
action of his brother Commissioners who assented to the Convention at 
Beaufort, as evidence of contemporaneous construction. I would re- 
mark, first, that Mr. Houston was overruled by the two other Georgia 
Commissioners, and the Legislature of Georgia ratified the Convention, 
notwithstanding his protest. . But is Mr. Houston reall}' an authority in 
favor of " a uniform and unvarying construction?"' Just the contrary I 
think. Mr. Houston gives his construction of the Charter as the opinion 
" of most people in Georgia,'''' and expressly says that " the point has 
been contested, but never decided on." The two other Commissioners, I 
infer from this, had put on the terms used in the Charter what Mr. 
Houston supposed to be the minority construction. The gravamen of 
his complaint is that his view of the true boundary had been disre" 
garded. As to his notice of the 2d Article of the Convention rather 
than the first, is not that accounted for in the fact, as I have shown, 
that it yielded more to South-Carolina, and presentd^ most strongly the 
difference of views between himself and the other Commissioners ? 

Your Excellency's fourth ground is the supposed " acquiescence of 
South-Carolina." 

This ground I feel assured, upon further investigation, your Ex- 
cellency will abandon. The acts of jurisdiction which your Excel- 
lency says have passed unquestioned are not specified, and knowing 
nothing of them I cannot speak. On every occasion, of which I am 
aware, where South-Carolina has been called on to express herself, she 
has assumed the boundary now claimed as the true one. 

I find that as far back as 1*764, South-Carolina undertook to charter 
a ferry over the Savannah river at Augusta. This implies a claim of 
sovereign jurisdiction over some portion of the river certainly. And it 
appears that she had exercised this power of chartering ferries over the 
Savannah, in no less than ten instances before the Convention at Beau- 
fort, and some twenty-four times before the grant of the charter to 
Shultz in 1818. In 1825, an Act was passed "to declare the assent of 
South-Carolina to a Convention between the State and Georgia, for the 
purpose of improving the navigation of the Savannah and Tugaloo 
Rivers." The 1st Article reads thus : — " The expense of improving and 



13 

rendering navigable the Savannah and Tugaloo Hivers, so far as they form 
the boundary of the two States, shall be borne equally by South-Caro- 
lina and Georgia." 

In 1836, in the case of the Bank of the State of Georgia vs. 
J. R. Kilburn and others, growing out of Shultz's Charter, Chan- 
cellor Johnston, though his Decree is in favor of the Bank, says — 
" The colonial charter of Georgia and the treaty of Beaufort, and the 
other matters bearing on the boundary between the States of Georgia 
and South-Carolina, leave no doubt in my mind that the centre of the 
river Savannah forms the boundary in the neighbourhood where the two 
bridges lie. " In all the litigation growing out of Schultz's Charter s:nce 
that time, the Courts in South-Carolina have maintained the same posi- 
tion. 

In 1825, Governor Manning, I am informed, bade his farewell to 
General La Fayette, in a steamboat in the middle of the stream, at 
which point the guest of South-Carolina was passed over to the au- 
thorities and the hospitalities of Georgia. In 1846, Governor John- 
son took leave of the Palmetto Regiment upon the centre of the Au- 
gusta Bridge. It is a mistake to suppose that South-Carolina has ever 
acquiesced in any other view than that the thread of the stream formed 
her boundary. 

The Acts of Congress referred to, " authorizing Georgia to lay a duty 
on tonnage for the purpose of clearing out certain obstructions in the 
Savannah river," passed without objection on the part of South-Carolina, 
your Excellency considers as conclusive evidence of acquiescence in the 
claim of Georgia to the whole of the river. South-Carolina has cer- 
tainly never intended that such an inference should be drawn. The 
removal of the obstructions was a mutual benefit to the two States, 
though the interest of Georgia, as controlling exclusively the southern 
branches below vSavannah, and having within her territory the only Port 
upon the river, was, of course, the greater. If she were willing to lay 
a duty upon tonnage arriving at her own Port for an object, advantage- 
ous to some extent to South-Carolina, though far more so to herself, 
why should South-Carolina interpose ? What would be the motive to 
do so ? There was nothing adverse in such a proposition, and the si- 
lence of South-Carolina cannot, therefore, be construed into a conces- 
sion. But were not the obstructions proposed to be removed, in fact 
confined to the portion of the river over which South-Carolina concedes 
jurisdiction to Georgia ? Was not the provision intended exclusively 
for the southern streams or channels of the river? The city of Savan- 
nah, we are informed, at this very time, proposes a subscription of 



14 

$160,000 for the purpose of clearing out obstructions. Does South- 
Garolina compromise her rights in permitting Georgia to proceed ? Are 
we to consider ourselves as challenged to interfere ? Or would not such 
interference be looked on as churlish, ungracious and unneighborly ? 

The Act of 1825 shows that in that part of the river over which 
South-Carolina did claim a divided jurisdiction, she was willing and 
proposed to bear half the expense of removing obstructions. If a Sena- 
tor of the State has at a later day made objection to anything which 
heretofore has passed sub silentio, it must have arisen, I apprehend? 
from the recent discovery that our past forbearance had been misinter- 
preted. 

The fifth ground, as expressed by your Excellency, is as follows : — 
"By all the circumstances connected with the early history of the ques- 
tion, and the action of the States in reference to kindred questions, 
growing out of and dependent for their settlement upon the construc- 
tion of the same instrument which originates this one." 

Surely the historical fact that the whole river belonged to South-Ca- 
rolina before the Charter, of 1732, cannot be supposed to help the con- 
struction you propose. The historical fact that various other documents 
purporting to follow substantially the description of the Charter, use 
language which, construed by itself, would certainly give the thread as 
the boundary, does not contribute to strengthen your claim to the whole 
river. The historical fact that the Convention of Beaufort, and the Con- 
stitution of Georgia, adopt language which you admit to be less favora- 
ble than that of your version of the Charter, cannot aid in establishing 
this particular reading. What is the portion then of the early history 
relied on ? There is nothing to rest on, so far as I can perceive, but the 
fact that South Carolina did not include this claim in her " bill of com- 
plaint," as your Excellency terms it. 

In regard to this, I would remark, first, that the matters actually 
in dispute were of so much greater interest, that the recital of this 
claim might well have been omitted. South Carolina contended for 
all the immense territory lying between the North-Carolina line, and 
a line running due west from the mouth of the Tugaloo to the 
Mississippi, comprising large strips of what are now the States of 
Georgia, Alabama and Mississippi ; and, next, all the territory be- 
tween the Florida line and a line drawn due west to the Missis- 
sippi, from the head of the St. Mary's river. While Georgia claimed 
not only all which the Convention yielded to her, but the territory ly- 
ing in the fork, between the Keowee and the Tugaloo. With such 
grave disputes to settle, the extent of land covered by the waters of 



15 

the Sftvaanab, over which the respective jurisdictions reached, might 
have been considered an incidental matter of easy adjustment. Except 
the comparatively unimportant lands lying in the fork of the Keov?ee 
and Tugaloo, Georgia gained every thing for which she contended. 
Territory comprising no inconsiderable portion of three large States, all 
of which was once South-Carolina, was conceded to her, and her long 
disputed title settled and secured. Would Georgia desire, if she could, 
to deprive South Carolina of the little which was settled in her favor, 
by a Convention which conceded so much to Georgia? But did South- 
Carolina know that her claim was seriously contested i The Georgia Act 
of 1783 was constructive notice to Georgians, but it was not so to a 
foreign State, and we have no evidence that South-Carolina in fact knew 
that the State of Georgia pretended to any such exclusive jurisdiction. 
I would submit, however, that the language of the Act of 1783 is not 
so explicit and conclusive as your Excellency seems to consider it. If 
the phrase " most northern part of a stream," as used in your copy of 
the Charter, may be construed as I have contended, to mean the part or 
branch of the stream north of the islands, and if, as I have endeavored 
to shew, this is the construction adopted in the documents alleged by 
your Excellency to be " recitals" or " analyses," intended to convey the 
same meaning, then it is not illogical to place a like construction on the 
language of the Act of 1783. The language of the Act is "that the 
limits, boundaries, jurisdiction and authority of the State of Georgia do, 
and did, and of right ought to extend from the mouth of the river Sa- 
vannah along the north side thereof, and up the most northern stream 
or fork of the said river to its head or source," etc. " Along the north 
side" of Avhat ? I would answer of " the mouth of the river Savannah," 
From that point " up'' the limit and boundary is " from the most 
northern stream or fork," the expression " along the north side" no 
longe.i applying. " Along the north side of the mouth," means I would 
say along the mouth on the north side of the island, or along the north 
side of the island at the mouth. This would reconcile the claim of 
Georgia with her chartered rights. A different construction would 
suppose a claim extending beyond the limits designated in the Charter, 
and the explanatory documents referred to. 

But why is not the silence of Georgia on this point, as pregnant of 
inferences as that of South-Carolina ? Mr. Houston admits " that the 
point had been often contested" in Georgia, and " never decided." Why 
did Georgia fail to press, at this time, when the object was " t« fix per- 
manently a boundary," for a decision of the point, which her Commis- 
sioner knevi to have been so " often contested ?" But the majority of 



16 

her Commissioners not only failed to press this point, but adopted a 
language difterent from that of the Act of 1783, and different from that 
of Mr. Houston's and your Excellency's reading of the Charter; lan- 
guage admitted to be less favorable to the Houston view of the bounda- 
ry, and which construed according to the " abstract and general princi- 
ples of law," would, I think, leave the matter no longer subject to 
contest. The ratification by the Legislature of " whatever was done'^ 
by the Commissioners, took place while the Convention containing this 
language lay before them, having appended to it the warning protest 
of Mr. Houston as to its effect in regard to the question of boundary. 
The legitimate inference is, that Georgia, then and there, yielded Mr. 
Houston's " contested point." 

I have touched, I believe, to some extent, upon all the views so in- 
geniously, and, with so much apparent confidence, presented by your 
Excellency. As I opened the argument custom assigned to me the 
conclusion, and I have performed, to the best of my ability, the duty 
devolving upon me. Such is my reliance upon the intrinsic merit of 
the claim I represent, that however unskilful may be the hands into 
which its advocacy has fallen, I cannot but hope that the argument pre- 
sented may convince the judgments of the Legislature of Georgia, anl 
that a question, which I cannot consider difficult, may be adjusted be- 
tween the co-terminous sister States without the aid of an umpire. 
With great consideration, 

I am, your Excellency's obdt. servt., 

ISAAC W. HAYNE, 
Attorney General of South- Carolina. 



APPENDIX. 



Letter of the Attorney-General of South- Carolina, in Sept., 1852. 

Office of Attorney General, Charleston, S. C, j 
September 10th, 1852. \ 

To His Excellency Howell Cobb, Governor of the State of Georgia : 

Dear Sir ; — In the interview which I had the honor, on the 25ih ultimo, to hold 
witii your E.xceilency, under instructions from his Excellency Governor Means, on 
the subject of the obstruction to the commerce and intercourse bet^veen tiie people 
of the States of Georgia and South-Carolina, by the collection of tolls at tiie Au- 
gusta Bridge, it was the effort, on my part, to furnish all the information on the 
subject which I had myself been able to command, and to explain with entire 
frankness what I conceived to be the views and wishes of South-Carolina, not only 
in regard to the Augusta Bridge, but as to the rights and policy of the two States 
in reference to the Savannah river generally. 

What was then expressed verbally, your Excellency desires that I would now 
more formally present to you by written communicat.on. 

I enclose a corrected copy of a Report on this subject, (which in substance you 
already have,) prep^ired ftfr the Governor of this State. I left with you copies 
all the documents referred to in the Report. 

You will learn from the R^ort, very clearly, what are supposed to be the rights 
of the people of this State in regard to the river. 

I have no authority to speak tor the Stale, as to the precise action which she de- 
sires should be taken at this time, but I do not hesitate to say that it is the wish of 
South-Carolina to carry out, in regard to this matter, those principles of Free 
Trade which have ever characterized her policy. I undertake to say that she will 
cooperate m removing every impeiiiment to the commerce and intercourse between 
the citizens of the two States, and that she is as ready to give her sanction to the 
building of bridges, to enable her own citizens, who may desire it, to buy and sell 
in Savannah and Augusta, as to ask your sanction to facilities afforded the citi- 
zens of Georgia to buy and sell in South-Carolina, if they shall find it most to 
their advantage to do so. 

Such would be the policy of Soulli-Uarolina towards all the world, upon the 
principles of political economy which have always guided her; but in regard to a 
great co-terminous slave-holding Slate, upon other grounds still more vital, it is 
her ardent wish not merely to promote, by every possible means, free commercial 
intercourse, bul in every re-pect to encourag'e and foster the mo?t intimate, fneudly 
and fr.ilernal relations. This she believes to be the common policy of the whole 
South. 

2 



18 

The Act of the Legislature, a copy of vvhich I append, is the evidence of that 
reciprocity which is desired by South-Carolina. 

The Preamble and Resolutions under which Governor Means has addressed 
himself to your Excellency, I likewise append, from which I infer, that with regard 
to the Bridge at Augusta, South-Carolina would wish to have it declared a free 
bridge. 

Governor Means, however, would, I do not doubt, be pleased to receive any sug- 
gestions from your Excellency, and would give them full consideration. 

In the interview, to which I have referred, your Excellency desired time ibr con- 
sideration of the subjects presented, but declared that you would take pleasure in 
communicating to his Excellency, the Governor of this State, your conclusions so 
soon as a full investigation enabled you to form them. I understood the intention 
to be that the Executive of each State should be fully possessed of the views of the 
Executive of the other, before either communicates with the Legislative depart- 
ment of his own State. 

With great consideration, 

I have the honor to remain 

Your Excellency's most obdt. servt., 

L W. HAYNE, Attorney-General. 



An Act to provide for the grant of reciprocal 2^ri'vileges to citizens of 
South- Carolina and of Georgia, in relation to the building of 
bridges over the Savannah River. 

Whereas it is highly important to the interest of the citizens of Sou'h-Carolina 
and Geortria, that some common system of providing for bridges and ferries over 
the Savannah river, and the passage of the same, should be adopted by the two 
States and that no obstacle should result from the want of concert in their legisla- 
tion on this subject. 

Be it enacted, by the Senate and House of Representatives, now met and sitting 
in General Assembly, and by the authority of the same, That any charter or fran- 
chise oranted or to be granted by the State of Georgia, for the purpose of building 
and e'srablishing bridges or ferries over the Savannah river, shall have full effect 
within the limits and jurisdiction of the State of South-Carolina, notwithstanding 
the rights of the said State to the same extent in all respects, as if such charter or 
franchise had been granted by the State of South-Carolina : Provided, That be- 
fore this Act shall go into operation, the State of Georgia do by law provide that 
equal effect be given in the State of Georgia to charters and franchises granted by 
this State ; and that after this Act shall go into operation, the legal effect and va- 
lidity of a'charter, granted by either of the said States for the purposes aforesaid, 
shall be subject to this limitation and restriction, that no such charter from either 
State shall prevent the other State from granting a charter for a bridge or ferry 
over the Savannah river, at any place, however near the place where a bridge or 
ferry is or may be established, under a charter from the other State: and Provided, 
also that nothing herein contained shall be taken or held to abrogate or impair the 
vested ri"-hts of any person or persons whomsoever, so far as such right may be 
valid in law. 

In the Senate House, the sixteenth day of December, in the year of our Lord 
one thousand eight hundred and fifiy-one, and in the seventy-sixth year of the 
Soverei"nty and Independence of the United States of America. 

ROBT. F. W. ALLSTON, President of the Senate. 
JAMES SIMONS, Speaker House of Representatives. 



19 



Joint Resolution of the Legislature of South- Carolina, passed 
December, 1851. 

Whereas, passengers and goods passing over the bridge across the Savannah 
river, between the city of Augusta in Georgia, and the town of Hamburg in this 
State, are subjected to the payment of tolls, said to be levied by authority of the 
city of Augusta: And, ichereas, a large part of the said bridge Is within the terri- 
torial limits and jurisdiction of this State, and the city of Augusta has no charter 
for the same under any law of this State: And, whereas, it is highly important and 
desirable that so serious an obstruction to the commerce and intercourse between 
the people of the two States should be removed ; provided that object can be ef- 
fected consistently with the legal rights of the city of Augusta and others. There- 
fore 

Resolved, That the Governor be requested to communicate with the Governor 
of Georgia on the subject, and to take such other suitable measures as may lead to 
a full exposition and understanding of the rights of all parties concerned, and a 
frank and friendly settlement of the whole matter. 



The report of the Attorney-General and Governor Cobb's reply, were printed by 
order of the Legislature of South-Carolina, at its last session. 



LiBRftRY OF CONGRPQ 

mi 

v±H 496 319 2 ^ 



